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Me for Law & Liberty: Getting rid of public-employee unions–good luck with that one!

June 5, 2019
Image result for striking teachers
Photo: Frederic J. Brown/ AFP

From my review (for Law and Liberty) of Philip K. Howard’s Try Common Sense: Replacing the Failed Ideologies of Left and Right:

Part of the problem, Howard believes, is our government’s accumulation of obsolete laws: farm subsidies left over from the New Deal, a Davis-Bacon Act dating from 1930 that sets wages on federal construction projects (and raises labor costs by 20 percent). “Congress is like the Roach Motel,” he writes. “Laws check in but they don’t check out.” He saves his most acid criticism, however for public-employee unions—unknown and even unthinkable until John F. Kennedy allowed civil servants to engage in collective bargaining during the 1960s as payback for their support in his election and Congress codified those rights in 1978. The unions promptly began the process that cynics had predicted: using their power to elect officials who would give them the green light to consolidate their power even further. It’s difficult to fire underperforming workers in the first place thanks to a raft of protective laws and litigation precedents. It’s almost impossible to fire them if they work for the government. The city of Los Angeles spent five years and $3.5 million to fire seven allegedly incompetent teachers but succeeded in getting rid of only four, “at an average legal cost of almost $1 million each,” Howard writes. He adds: “[P]ublic unions have evolved into an enemy of the common good.” Amen, brother!

The opposite of the rule of law is the rule of men, and this is essentially Howard’s proposed solution. It’s what he means by “try common sense.” In an appendix titled “Ten Principles for a Practical Society,” he recommends scrapping the entire tottering U.S. legal and bureaucratic superstructure for a skeletal armature of laws and regulations that would give both private individuals and public officials the scope and flexibility to exercise personal responsibility. One-stop permitting shops for small businesses would replace today’s labyrinthine system. Statutes and rules would be sunsetted if they no longer served the public good. Agencies could terminate incompetent or disruptive employees without further ado (which would have the benefit of raising all-around workplace morale and restoring pride to civil service), and judges could summarily dismiss pointless lawsuits. Needless to say, public-employee unions would be among the first institutions to go. Howard argues that they are unconstitutional anyway, an infringement of the power of the executive branch to hire and fire within limits of reasonable discretion.

And it is here that the chief problem with Howard’s book arises: Who would implement this massive mucking out of multiple Augean stables? Howard’s answer is: commissions, committees, and experts. A “commission” would abolish public unions. “[P]eriodic review commissions” would recommend changes in salary levels and work rules for public servants. “[R]ecodification commissions” would simplify the statutory system and get rid of outdated laws. A “special committee” would recommend guidelines for children’s play and autonomy. “[E]xpert health courts” would substitute for wasteful and expensive medical-malpractice litigation. Well! Perhaps Howard’s faith in the virtue, mental fortitude, and sheer numbers of the best and the brightest whom he would designate to staff all those commissions and committees is greater than my own, but I can’t help but wonder if they wouldn’t be the usual round of faded politicos, Ivy League superstars, and anointed public intellectuals. There would also be ideological controversy: Would Jordan Peterson be allowed on a commission? How about Ezekiel Emanuel of the Obamacare “death panels”? William F. Buckley’s chestnut about preferring to be governed by the first 2,000 names in the Boston telephone directory comes to mind.

Read the whole thing here.

Posted by Charlotte Allen

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